In Re: Billy W.

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In re Billy W., Jessica W., Mary S., and George B., No. 100, September Term, 2004. Family Law: Evidence. Application of the Maryland Rules of Evidence in Permanency Planning Hearin gs. Admissibility of Hearsay Testimony. Un der Maryland Ru le 5-101 (c), providing for the discretionary strict application of the Rules of Evidence in disposition hearings under Maryland Rule 11-1 15, the juve nile court is no t required to stric tly apply the Rules of E vide nce i n permanency planning hearings, which are dispositional in nature. When the Rules o f Evidence are not strictly applied in permanency planning hearings, the trial court must evaluate whether evidence proffered for admission is sufficiently reliable and probative prior to is admission. Juvenile court did not err in admitting hearsay testimony from a Department of Social Services social worker and two Court Appointed Special Advo cates du ring the perma nency pl anning procee ding. IN THE COURT OF APPEALS OF MARYLAND No. 100 September Term, 2004 IN RE BILL Y W ., JESS ICA W ., MARY S. & GEORGE B. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Batta glia, J. as to Part I. Opinion by Harrell, J. as to Part II, joined by Rake r, Wilne r and G reene, J J. Dissenting Opinion by Battaglia, J. as to Part II, joined by Bell, C.J. and Cathell, J. Filed: June 13, 2005 In this action between the biological parents and the State, we have been asked to consider whether the trial court properly admitted hearsay testimony by a social worker and two Court Appointed Special Advocates1 during a hearing to review the permanency plans for children who had been declared in need of assistance. Because we have held that application of the Maryland Rules of Evidence is not mandatory in permanency planning hearings, the Circuit Court did not commit error in admitting hearsay testimony from the social worker and the Court Appointed Special Advocates during the permanency planning procee ding. Facts and Procedural History2 Ms. B., an Ap pellant in this case, has four children who are the subjects of the permanency planning hearing at issue: Mary S., born in 19 91, Jessica W ., born in 199 2, Billy W., born in 1994, and George B., born in 2000. The father of Mary S., Jessica W., and B illy W. is deceased. Georg e B. s father is Mr. B., another Appellan t in this case, to whom M s. B. was ma rried, but from whom she is now separated. A ll four childre n resided w ith both Mr. and M s. B. prior to the separation. T he family first ca me to the attention of the Baltimore County Department of Social Services ( DSS ) when Mary S., then eight years 1 A Court Appoin ted Special Advocate ( CASA ) has been described as a trained commu nity volunteer, appointed by a judge, to represen t the best interes ts of children in cases that come before the court due to alleged abuse or neglect. N ATIONAL C OURT A PPOINTED S PECIAL A DVOCATE A SSOCIATION, JUDGE S G UIDE TO CASA/GAL P ROGRAM D EVELOPMENT [hereinafter NCASAA J UDGE S G UIDE ] 15 (2004). 2 Many of the following facts are substantially the same as those recited in a related case, In re Billy W., Jessica W., Mary S., and George W., __ Md. __, __ A .2d __ (2005). old, alleged that she had be en sexu ally abuse d by Mr . B., who was later charged and convicted. DSS, during its investigation of the sexual abuse allegations, determined that Ms. B. was aware of Mr. B. s past history of sexual abuse and knew of Mr. B . s behavior with Mary S., but had failed to take appropriate action to protect the girl. All of the children, nevertheless, remained in M s. B. s care after she and Mr. B. separated. During the next two years, while the children were in Ms. B. s care, there were four additional investigations by DSS of abuse and neglect, including allegations that Mary S. had sexu ally ab used Billy W . On February 7, 2002, DS S removed all fou r children from M s. B. s care, placed them under emergency shelter care, and subsequently filed a petition in the Circuit Court for Baltimore County requesting judicial approval o f shelter care for the children. Th e court conducted a hearing and ordered DSS custody of the children and shelter care for them, pending an adjudicatory hearing.3 Thereafter, during the ad judicatory hearing, all four children were declared to be children in need of assistance ( CINA )4 and committed to the 3 An adjudicato ry hearing is a h earing und er this subtitle [Ju venile Ca uses] to determine whether the allegations in the petition, other than the allegation tha t the child requires the court s intervention, are true. Md. Code (1973, 2002 Repl. Vol.), § 3-801(c) of the Courts and Judicial Proceedings Article. 4 Md. Code (1973, 2002 Repl. Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article defines a CINA as: Child in need of assistance means a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child s parents, guardian, or custodian are unable or unwilling to give p roper c are and attention to the ch ild and th e child s needs. 2 care and custody of DSS for placement in foster care. The court also ordered that Ms. B. be permitted two hours supervised visitation once per wee k with all four children an d that Mr. B. would have one hour supervised visitation once per week with George B.5 At that time, the permanency plan 6 for the c hildren was re unifica tion sole ly with M s. B. 5 The court further ordered that Ms. B. satisfy the following conditions: ORDERED that . . . reasonable efforts continue to b e made to make it possible for the children to return home. Conditions Mother is to cooperate with DSS in providing background information, signing release forms for any educational, medical or any other information needed to provide services for children and family . . . . Mother is to continue and finish parenting skills classes and sign release of information regarding parenting class. Mother is to submit to a psychiatric and psychological evaluation by a qualified doctor in respect to her parenting abilities and techn iques, she is to follow any recommendations for treatment as a result of the evaluation. 6 Md. Code (1984, 1999 R epl. Vol.), § 5-525(e) of the Family Law Article states: Development of a permanency plan. (1) In developing a permanency plan for a c hild in an ou t-of-hom e placeme nt, the local department of social services shall give primary consideratio n to the best interests of the child. The local department shall consider the following factors in determining the permanency plan that is in the best interests of the child: (i) the child s ability to be safe and healthy in the home of the child s parent; (ii) the child s attachment and emotional ties to the child s natural parents and siblings; (iii) the child s em otional attachment to the child s current c areg iver and the c areg iver s fa mily; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child s current (contin ued...) 3 Initia lly, DSS placed Billy W. a nd George B . together in a foster home; h owever, both boys were removed due to allegations that Billy W. had sexually abused a younger ch ild in the h ome . After a b rief s tay in another home, Billy W. was co mmitted to St. Vincen t s Center, a residential treatment center, from June 2002 until November 2003, when DSS transferred him to a therapeutic foster home. During that same time George B. was moved to another foster home where he has remained. Mary S. and Jessica W. were placed tog ether in a fo ster home ; after six we eks both 6 (...continued) placement; and (vi) the potential harm to the child by remaining in State custody for an excessive period of time. In addition, Md. Code (1973, 2002 Repl. Vol.), § 3-823 (e) of the Courts and Judicial Proceed ings Article s tates: Determinations to be made at hearing. At a permanency planning h earing, the co urt shall: (1) Determine the child s permanency plan, which may be: (i) Reunification with the parent or guardian; (ii) Placement with a relative for: 1. Adoption; or 2. Custody and guardianship; (iii) Adoption by a nonrelative; (iv) Guardianship by a nonrelative; (v) Continuation in a specified placement on a permanent basis because of the child s special needs or circumstances; (vi) Continua tion in placem ent for a sp ecified period because of the child s special needs or circumstances; or (vii) Independent living; and (2) For a child who has attained the age of 16, determine the services needed to assist the child to make the transition from placem ent to ind epend ent livin g. 4 were moved to a therape utic foster ho me. In Au gust 2002 , Mary S. w as admitted to Sheppard Pratt Hospital for suicidal behavior, where she was diagnosed with aggressive disorder rec urrent with psychosis and possible dissociative disorder. Mary S. stayed at Sheppard Pratt for six weeks, was discharged and moved to transitional housing, and then to the Villa Maria Residential Treatment Center for six months, before returning to the original therapeutic foster home in May 2003. Jessica W. has remained in the original therape utic fos ter hom e the en tire time. The Circuit Co urt condu cted period ic review hearings,7 and on June 23, 2003, DSS recommended, and the court ordered, a change in the permanency plan for George B. from reunification to a concurrent plan of reunification with Ms. B. and adoption. The court also increased Billy W., Jessica W., and Mary S. s visitation with Ms. B. to include, in addition 7 Md. Code (1973, 2002 Repl. Vol.), § 3-823(h) of the Courts and Judicial Proceedings Article states: Periodic reviews. (1)(i) Except as provided in subparagraphs (ii) and (iii) of this p aragraph, th e court shall conduct a hearing to review the perma nency plan a t least every 6 m onths until commitment is rescinded. (ii) The cou rt shall conduct a review hearing every 12 months after the court determines that the child shall be continued in out-of-home placement with a specific caregiver who agrees to care for the child on a permanent basis. (iii) 1. Unless the court finds good cau se, a case sha ll be terminated after the court grants custody and guardianship of the child to a relative o r other in dividu al. 2. If the Court finds good cause not to terminate a case, the court shall conduct a review hearing every 12 months until the case is te rminate d. 5 to supervised visitation, one hour of unsupervised visitation. The reunification plan with Ms. B. for the three ch ildren rema ined unch anged. M r. B. s visitation w as chang ed to one hour supervised visitation per month with George B. Ms. B. did not object to the maintenance of the permanency plans for Billy W., Jessica W., or Mary S. Both parents contested the change in the perm anenc y plan fo r Geor ge B., and note d separate appeals to the Court of Special Appeals, which affirmed the judgment of the Circuit Court in a consolidated unreported opinion. While that appeal was pending in the Co urt of Special App eals, the Circuit Court held another six month review hearing on November 10, 2003, in which the trial judge once again continued the commitment of all four children to the care and custody of DSS. The judge also ordered that Ms. B. s visitation with Billy W. and Jessica W. would remain two hours supervised per week and one hour unsupervised per week. As to Mary S., the parties agreed and the court acquiesced in the decision that Ms. B. would be permitted one hour supervised visitation per week , but that the un supervised visitation would be suspended.8 With respect to George B., Ms. B. s visitation remained three hours, but the supervised 8 During the Nov ember 10 , 2003 hea ring, Ms. K risty Caceres, a D SS social worker assigne d to the c ase, testif ied abo ut the vis itation b etwee n Ms. B . and M ary S.: As of right now Mary se es her m other d uring f amily ther apy . . . . The Court had specified that Mrs. B. was e ntitled to unsupervised visits with Mary as well as the supervised portion. It was several mo nths, at least as of August, that stopp ed. Mary indicated to f irst her foster p arent, then to workers, and then to her mother, Mrs. B. that she did not want to have unsupervised visits with he r mothe r, and those - - and Mrs. B. ag reed and it stopped. 6 visitation was reduced to one and a half hours per week. Mr. B. s visitation with George B., one hour supervised visitation per month, was not changed. Both Ms. B. and Mr. B. noted separate appeals from the co urt s order re gardin g Geo rge B., to the Court of Special Appeals, which in an unreported opinion, addressed the substantive issues raised by the parties and affirmed the judgm ent of the C ircuit Court. 9 Sub sequ ently, while that appeal was pending in the Court of Special Appeals, the Circuit Court held a three-day review hearing on April 23, 2004 and May 4-5, 2004, which is the subject o f this appeal. At the hearing, sixteen witnesses testified, including M s. Kristy Caceres, a DSS s ocial worker assigned to the case, who testified about the progress of the children and the children s inte raction with both Ms. B. and Mr. B. When DSS questioned Ms. Ca ceres abou t the progres s of the child ren s fam ily therapy, the follow ing ensue d: [DSS s COU NSEL ]: And is tha t family therapy progressing as desired? [MS. CACERES]: The last that I talked to the therapist, she seemed to think that there w ere some- [Ms. B. s COUNSEL]: Objection. [THE CO URT]: Basis? 9 See In re George B., Billy W., Jessica W. & Mary S., Nos. 2239, 2266, 2267, 2269, September Term 2003 (filed August 18, 20 04). Thereafter, Ms. B. appealed the decision of the Court of Special Appeals, and this Court dismissed her case holding that because th e order relating to George B . did not detrimentally affect Ms. B . s parental rights, the order was not appea lable. See In re G eorge B., B illy W., Jessica W. & Mary S., __ Md. __, __ A.2d __ (2005). 7 [Ms. B. s CO UN SEL ]: He arsa y. [THE COURT ]: It s a review hearing. I think there s some latitude. [Ms. B. s COUNSEL]: Again, I m going to ask for a continuing objection to hearsay from therapists wh o aren t present to testify and could have been. [THE COUR T]: All right. Overruled. Ms. Caceres continued to testify that she spoke with the children s therapist, who was not present at the hearing, about the children s family therapy and that the therapist seemed to think that there was some p rogress. Th ings were going ok ay. Counse l for Ms. B . again objected on the gro unds of h earsay, to which the hearing judge replied: It s a review hearing. Strict rules of evidence don t apply if there s some foundation for the knowledge, but there s som e latitude. A fter the judg e overruled the hearsay ob jection, Ms. Caceres opined that the permanency plans for the children should not be changed because there had been minima l progress in Ms. B. s ability to focu s on the kid s and to pro vide for the ir individual needs. She also stated that DSS did not have the adoptive resources for the children and would not seek a termination of parental rights at that time. Ms. B. testified during the hearing that her relationsh ip with the children was imp roving an d that she w ould be able to care f or the ch ildren if they wer e to be re turned to her ca re. Several social workers involved with supervising the visitation with George B. and Mr. B. also testified at the hearing. All of the social workers uniformly stated that during a visit between Mr. B. and George B. in February 2004, Mr. B. s behavior toward them was 8 aggressive and erratic to a point that the police were called to remove Mr. B. from the building after he refused to leave th e visiting room. The soc ial workers also testified that during the altercation, Mr. B. became violent toward the police off icers while George B. was present right outside the visiting room at the end of the visitation. Mr. B. testified during the hearing and denie d that he ha d been lo ud and ag gressiv e durin g the vis it with G eorge B ., contrary to the testimony given by the social workers. Mr. B. explained that he only had expressed anger afte r George B. had be en remov ed from th e visitation room before the scheduled visitation time had lapsed. Mr B. further argued that he wanted George B. s permanency plan to be c hanged to a concurrent plan of reunification with both Mr. and Ms. B., and in the alte rnative, i ncreas ed visita tion wo uld be a ccepta ble. At the conclusion of the witness testimony, the trial judge referred the parties to the written reports of two Cou rt Appoin ted Specia l Advoc ate ( CA SA ) vo lunteers assig ned to the cases, w ho were present du ring the hea ring: [COU RT]: Well, CASA is here. Usually at a review hearing I ask CASA if they have anything to add other than w hat s contained in the record. [MR. B. s COU NSEL]: But you acc ept the repo rt in its en tirety? I have not participated in one of these before. [COU RT]: The reports are filed as part of the Court file. If anyone has questions about them they can ask CASA. Or, i f they want to inquire in any way, they can do that. Have you had a chance to review the CASA repo rts? [MR. B. s COUNSEL]: Yes. And Your Honor, I was troubled by the hearsay in it, and how it was kind of replete with some 9 false statements . . . and that kind of thing. [DSS s COUN SEL]: I don t kno w how we add ress their report at this hearing. [COU RT]: Well, let s deal with the CASA reports in terms of what the objections or concerns are that you have about them. After discussing th e objection s to the written reports, the judge explained that the parties could question the CASA volunteers about the reports and, then solicited testimony from both CASAs regarding the status of the children. Neither CASA volunteer was placed under oath prior to testifying at the hearing, and the CASA reports were not formally entered in evidence, although the record reflects that the reports previously had been reviewed by the juvenile court ju dge an d the pa rties. In response to questions from the hearing judge, the CASA volunteer assigned to the girls testified that Mary and Jessica had stated that they want unsupervised visitation with Ms. B., but that they did not want to return home to Ms. B. The judge inquired whether the parties h ad any qu estions f or the C ASA , to whic h each couns el replied in the ne gative. The CASA assigned to the boys, Billy W. and George B., was then calle d to testif y, and in response to questions posed by the trial judge, the CASA volunteer stated: [COURT]: Mr. [CASA], can I ask . . . the frequency of your contact with the boys? [CASA ]: It varies. Sometimes it s once a month and sometimes it s twice a month. I talk to the stepmothers probably more than I see the boys, to find out how they are getting along. I do have a couple of things that I wou ld like to say that are probably not in that report. 10 [COU RT]: A ll right. [CASA ]: . . . it s about the conversations that they had with their mother when they are on unsupervised visits, or when they are on visits. The mother s inappropriate conversation is a main problem that s causing these children a lot of stress and strain. [MS. B. s COUNSEL]: Objection. [MR. B. s COUNSEL]: Objection. [CASA]: This is my opinion. [COURT ]: Hold on. objection? Hold on. What s the basis of the [MR. B. S COUN SEL]: My basis was, he is expressing an opinion as to the main problem with these children. And again, that s inappro priate for him to say that. [COURT]: Mr. [CA SA], you ca n tell me abo ut whatev er they have told you about con versations with - [CASA ]: I will do that. In . . . Janu ary, I took . . . Billy out for lunch . . . . He always have been extremely pleasant, courteous, very polite. This particular visit was very strenuous on me . . . . Billy was belliger ent, he w as aggr essive, h e was very sharp with me. He wouldn t answer questions when I talked to him. So, I took him home and told the . . . foster mom, that it didn t go well. I called [the foster mom] up later that week and she said that - [MS. B. S COUNSEL ]: Objection. [CASA ]: I said that the visit w ent very bad. T his is actually what happened. [COURT]: What s the basis of the objection? [MS. B. S COUNSEL]: We are getting hearsay from the foster 11 mom on w hat she said Billy said to her. [COURT ]: You know what, there is a statute that allows for CASA that permits precisely this. They are supposed to have contacts and report to the Court about the contacts. *** [CASA ]: Anyhow, [the foster mom] told me that B illy said his mother said that I [the CASA] was a very bad person and that [Bil ly] should ha ve no con tact with me. He a lso said h is . . . foster mothe r was a very bad person , amongst other people. Now Billy knows better and he confid es with me. O n our . . . last visit . . . I confronted [Billy] with this question. W e were going for a long ride, and [Bil ly] told me tha t his mom told him that I [the CASA] w as a very bad person and that [Billy s] foster mother was also a bad person, amongst other people in his school. And, that he was very mixed up and very confused. *** [CASA ]: And then I asked [Billy], you know, and Billy was telling me on this particular visit, and others, that on Wed nesd ays he some times gets ve ry stressed out. And I asked him, why do you get stressed out on Wednesdays, and he s aid because he was to make plans for what he is going to do on Thursday with his mother. And I said, what do you m ean, Billy, and he said you k now, I ha ve to set it all up, I v e got to make sure we do things right and go to the right places. I said, do esn t your mother handle that, and he said, no, she doesn t know the area and I hav e to handle it and I have to tak e care of it. T his puts a lot of stress on this young man. [CO URT ]: Okay. The same CASA volunteer assigned to the boys also testified about George B. s recent v isits with M s. B.: [CASA ]: Georgie , is, by his foster-mo m, he cries h imself to sleep sometimes right after visits. [COU RT]: Mr. [CA SA], I ve got to lim it you to things that you see, you observe, what you know. 12 [CASA ]: I ve got that. The visit that I had with Georgie, two or three weeks a go, on Sa turday he and I had a very nic e long w alk and talk, and this is what he said to me. He told me his mother made him feel b ad and sh e called him bad names. And also, my father is in jail. That was from Georgie s mouth. You know the foster parents have to pick up all the pieces of the visits, and it s getting tough on the fos ter parents . . . . Th at s the es senc e of w hat I have to say. The trial judge then asked whether any of the parties had any questions to ask the CASA, to which the following dialogue ensued: [MS. B. S COU NSEL]: I have one. In all the time that you have been in volved in this ca se have you ever talked w ith Mrs . B.? *** [CASA ]: Well, I couldn t remember the dates. I have been involved with this two years. [MS. B. S COUNSEL ]: It s been a while? [CA SA] : Pro bably. [MS. B. S C OUN SEL]: Hav e you ever tried to contact her? [CASA ]: No. Should I? [MS. B. S COUNSEL]: Have you ever tried to raise these concerns? [COU RT]: Wait a minute. Wait. Wait. Wait. Wait. I have volunteers here who are giving their time. This is not to be confrontation al. Mr. [CA SA], it s not th e time to pu sh them either. You can ask questions about the report, so do you have another question? [MS . B. S C OUN SEL] : No. N o, I don t, You r Hon or. The judge then inquired a second time whether the parties had any further questions, t o 13 which each counsel replied in the negative. At the conclusion of the hearing, the trial judge approved the extant permanency plans that all four child ren remain committed to the custody of DSS. With regard to visitation for Jessica W. and Mary S ., the trial judge stated that [v]isitation [with Ms. B.] should be wee kly, and it should be unsupervised. The judg e also order ed Ms. B . to participate in family therapy with the girls. In expressing concern about the interaction between Billy W. and Ms. B., the judge stated: With regard to Billy, the situation with Billy is more dif ficult because there are varying views of the appropriateness of comments that are made to him. My reaction to what I have heard on Billy is that he is still in a fairly fragile state. He has just come out of S t. Vincent s, a nd he has had diffic ulty in adjusting . . . . On the one hand, there are suggestions that time with his mother should be more meaningful and unsupervised. On the other hand, it appears that with Billy, that comm ents made in his presen ce have th e potential to th row him off a little bit more. I am very concerned about this tension between Mrs. B. and the fo ster-mother because it s c lear that there is someth ing ther e, and it h as to be resolve d. Acc ordingly, the hearing judge imp osed the fo llowing co nditions on Ms. B. s v isitation with Billy W.: With Billy, the plan still remains the same. The question is, the supervision structur e . . . . [Ms. B.] should have contact, phone contact with Billy, and B illy should have phone co ntact with h is mothe r. *** What I want is Mrs. B. involved in [Billy W. s] therapy and that there would b e at least two therapeutic visits before we resume unsupervised visits . . . . I would like it done in a way that - - I want [Ms. B.] involve d in the th erap y, and if there is a concern 14 then the therapist can articulate that and then I can get some inpu t on w hy it sh ould remain supervise d only. The judge further determine d that Ms. B. s visitation with Billy W. would remain th ree hours per week, bu t the unsup ervised visitation would be suspended until Ms. B. completed two family the rapy sessi ons w ith Billy W . In regard to Ms. B. s visitation with George B., the judge stated: With regard to George, I think that there should be some supervision still with th e conta ct that [M s. B.] ha s with h im . . . . I would ask that the Department try to make the visits, wh ile supervised, to do it if at all possible through a pare nt-aide, so that it s not Mrs. B . with the work er who is th e person so rt of in control of the situation, but with somebody with w hom [ Ms. B .] has a somew hat bette r or mo re relaxed relatio nship w ith. I would ask if you can explore whether the parent-aide would be available to supervise out-of-office visits, and at least twice a month, that the visits, which would be likely, at least twice a month, that those would be out of the Agenc y. If those go w ell, and things stay on track and we don t have a recurrence on the types in the past, and comments, or problems that have been problematic, we can lo ok again and do unsupervised. Right now I think we n eed to rein it back a little an d have it un der control. The hearing judge n ext add ressed M r. B. s visitation schedule with George B. and determined: The question as to visits for Mr. B. is complicated by the fact that . . . I would not burden the Department with supervising visits if the Dep artment s ag ents didn t rea sonably feel that they were safe in his presence or felt threatened in his presence. *** To the extent that I wou ld permit visits to continu e it would o nly be done with an outside monitor in place and in a neutral site. It is my u nderstanding that some of the sheriffs that are off duty will monitor supervised visitation and they ll do it at a 15 fee. I am advising [Mr. B. s Counsel] of that, that I w ould consider a proposal for supervised visits by an outside monitor who is an off-duty law enforcement person, but it s going to be at Mr. B. s expense. Essentially, the court advised that, because of Mr. B. s volatile behavior against DSS representatives during the visits, it would require that an off-du ty officer supervise Mr. B. s once p er mon th visitatio n, at the e xpens e of M r. B. Both parents, represented by the Public D efender s Office, n oted separa te appeals to the Court of Special Appeals. 10 Ms. B. s brief presented the following question for review: Did the trial judge err in admitting hearsay evidence at the permanency plan review hearing in these CINA cases? Mr. B. s brief presented the following question: Whether the trial court abused its discretion by denying M r. B. s request to change the permanency plan to reunification with George B. and by eliminating visitation with him? This Court issued, on its ow n initiativ e, a writ o f certior ari, In re Billy W., 384 Md. 448, 863 A.2d 9 97 (20 04), prio r to any pro ceedin gs in the interme diate ap pellate c ourt. Appealab ility 10 In the Circuit Court, the cases pertaining to each child were separately docketed; however, the various hearings were always consolidated to include all four children in a single hearing. On appeal to the Court of Specia l Appeals , Ms. B. an d Mr. B . s separate appeals regarding George B. were consolidated, briefed and argued, all of which occurred prior to our recent decision in In re Samone H., __ Md. __, __ A.2d __ (2005), establishing the requirements of appellate review for judgments arising from permanency plan review hearing s. 16 In In re Samone H. and Marchay E., __ Md. __, __ A.2d __ (2005), we considered whether an appea l would lie from an order entered after a permanency plan review hearing where the order co ntinuing the permane ncy plan did not adversely aff ect the paren tal rights or change the terms of the permanency plan to the parent s detriment. In that case, the Circuit Court fo r Baltimore City previously had implemented permanency plans of adoption for two children, Samone H. and Marchay E., both of whom had been adjudicated children in need of assistance, based u pon alle gations of neg lect by their mothe r, Katin a M. Id. at __, __ A.2d at __. After several periodic review hearings, Katina M. filed a requ est for a bonding stud y to have the children evaluated by a psychiatrist to provide an assessment of her relationship with her children. She also had the children subpoenaed to testify at another pending review hearing. During that hearing, the trial judge denied both requests and maintained the extant permanency plans for adoption, from which Katina M. appealed. On appeal, the Court o f Special A ppeals affirmed the judgment of the trial court, and this Court after granting ce rtiorari, dismissed the appeal holding that the trial court s order denying the motion for [bonding] study [was] not an appealable final judgment and [did] not constitute an interlocutory order under Section 12-303(x). Id. at __, __ A.2d at __.11 11 Md. Code (1974, 1998 Repl. Vol.) § 12-303(3)(x) of the Court and Judicial Proceedings Article provides: A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case: *** (3) An order: (contin ued...) 17 In reaching that conclusion, we explained that the court s order did not constitute a final judgmen t, and that it was not an appealable interlocutory order [b]ecause the order continuing the permanency plan did not adversely affect Katina M. s parental rights or change the terms of the permanency plan to Katina M. s detriment . . . . Id. at __, __ A.2d at __. We further noted that the court s order was not appealable under the collateral order doctrine because the order did not conclusively determine whether the permanency plans should have been changed, was not separate from the merits of the action, and would be reviewab le on appeal if the denial had affected the mother s parental rights ad versely. Id. at __ n.13, __ A.2d at __ n.1 3. Thus, to be appea lable interlocutory orders, court orders arising from the permanency plan review hearing must operate to either deprive the parent of the care and custody of his or her children or change the terms of the care and custody of the children to the pare nt s detr iment. Id. at __, __ A .2d at __.; In re Damon M., 362 Md. 429, 438, 765 A .2d 624, 628 (200 1). In the present case, both Ms. B. and Mr. B. are appealing orders of the Circuit Court emanating from a permanency plan review hearing that maintained the extant plans for the children but changed the visitation. Clearly, the orders cannot be regarded as final in nature; rather, the orders are interlocutory in nature and mus t act to detrimentally affect Ms. B. and 11 (...continued) *** (x) Depriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order . . . . 18 Mr. B. s parental rights to be appealable under Section 12-303(3)(x) of the Courts and Judicial Proceedings Article. In re Samone H. __ at __, __ A.2d at __ ; In re Damon M., 362 Md. at 438, 765 A.2d at 628. The hearing judge changed Ms. B. s visitation with Jessica W. and Mary S. from partial weekly unsupervised visitation to total weekly unsup ervised v isitat ion. O bvio usly, such a change in Ms. B. s visitation does not operate to her detriment because she is allowed more un restricted acce ss to the girls. Conversely, the court orders relating to Billy W. and George B., which eliminated Ms. B. s unsupervised visitation infringes upon Ms. B. s opportunities to interact with, and care for, the boys and to potentially build stronger relationships with them . Because the orders re garding B illy W. and George B. changed the terms of Ms. B . s visitation to he r detriment, the orders are a ppealable as interlocutory orders under Section 12-303(3 )(x). See In re Samone H. __ at __, __ A.2d at __; In re Damon M., 362 Md. at 438, 765 A.2d at 628. Similarly, the condition s placed on Mr. B. s v isitation with G eorge B., sp ecifically that Mr. B. secure the services of an off-duty officer to supervise his visitation with George B., changed the terms of Mr. B. s care and custody to his detriment. During the hearing, Mr. B. explained that he did n ot have th e financial a bility to contribute toward things, and his eligibility to be represented by the Office of the Public Defender throughout these procee dings te nds to s uppor t that asse rtion. See In re Ado ption/Gu ardiansh ip Nos. 11387 and 11388, 354 Md. 574 , 587, 731 A.2d 9 72, 979 (1999) (ho lding that a natural parent is 19 entitled to representation by Public De fender in hearing co nducted to review children s status, as long as that parent is indigent). The court s requirement that Mr. B. hire an offduty officer with his own resources constitutes a detrimental change in Mr. B. s visitation rights because the order operates as an effective d enial of visitatio n should h e not be ab le to afford to pay for the officer s services. Therefore, the order qualifies as an appealable interlocutory order. See In re Samone H. __ at __, __ A .2d at __; In re Damon M., 362 Md. at 438, 765 A.2d at 628. PART I Ms. B. s Appeal Ms. B. argues that the trial court abused its discretion in admitting hearsay testimony12 provided by a DSS social worker and two CASAs during the permanency planning hearing because the applicatio n of the rule s of eviden ce in such h earings are m andatory desp ite Maryland Rule 5-101(c), 13 which allow s for the disc retionary applica tion of the R ules in 12 Maryland Rule 5-801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing , offered in evidence to prove the truth of the matter asserted. 13 Md. Rule 5-101 (c) provides: (c) Discretionary application. In the following proceedings, the court may, in the interest of justice, decline to require strict application of the rules in this Title other than those relating to the competency of witnesses: (1) The dete rmination of question s of fact pre liminary to admissibility of evidence when the issue is to be determined by the court under Ru le 5-104 (a); (2) Proceedings for revocation of probation under Rule 4-347; (3) Hearings on petitions for post-conviction relief under Rule (contin ued...) 20 certain proceedings, including disposition hearings und er Maryland Rule 11-11514 and 13 (...continued) 4-406; (4) Plenary proceedings in the Orphans Court under Rule 6462; (5) Waiver hearings under Rule 11-113; (6) Disposition hearings under Rule 11-115; (7) Modification hearings under Rule 11-116; (8) Any other proceeding in which, prior to the adoption of the rules in this Title, the court w as authorize d to decline to apply the common-law rules of evidence. 14 Maryland R ule 11-11 5 provide s in pertinent p art: a. Hearing Scheduling. If after an adjudicatory hearing the court determine s that the allega tions of the petition at issue in the adjudicatory hearing have been sustained, it sha ll promptly schedule a separate disposition hearing. The disposition hearing shall be held no later than thirty days after the conclusion of the adjudicatory hearing. *** d. Commitment to Department of Social Services. In cases in which a child is committed to a local department of social services for placement outside the child s hom e, the court, within 18 months after the original place ment and periodically thereafter at intervals not greater than 18 months, shall conduct a review hearing to determine whether and under that circumstances the child s commitment to the local department of social services should continue. Considerations pertinent to the determination include whether the child should (1) be returned home, (2) be con tinued in foster care for a specified period, (3) be placed for adoption, or (4) because of the ch ild s special needs or circumstances, be continued in foster care on a permanent or long-term basis. The hearing shall be conducted as prescribed in Rule 11-110 or, if conducted by a master, as prescribed in Rule 11-111, except that the child s presence s hall not be required if presence at the hearing is likely to cause serious physical, m ental, or e motion al harm to the ch ild. 21 modific ation hearin gs unde r Maryland Rule 11-116.15 Ms. B. distinguishes permanency planning hearings held under Section 3-8 23 of the C ourts and Judic ial Proceed ings Article from disposition hearings described u nder M aryland Rule 11-115d ., because, ac cording to her, the determinations made during permanency planning hearings are qualitatively different from those made in disposition hearings as contemplated under Rule 11-115d. Ms. B. also asserts that perma nency plann ing hearing s are not modification hearings under Maryland Rule 11-116, characterizing the order issued as a result of a permanency planning hearing as a new order rathe r than modifying the court s origina l order. Con vers ely, the Depa rtment argu es that the trial co urt properly exercised its discretion in admitting the hearsay testimony of the social worker and CASA during the permanency 15 Maryland R ule 11-11 6 provide s in pertinent p art: a. Revisory power. An order of the court may be modified or vacated if the court finds that ac tion to be in the best interest of the child or the public, except in cases involving commitment of a child to the Department of Health and Mental Hygiene for placemen t in a State me ntal hospital. *** c. Hearing When required. If the relief sought under section a of this Rule is for revocation of probation and for the commitment of a respondent, the court shall pass an order to show cause why the relief should not be granted and setting a date and time for a hearing. The clerk shall cause a copy of the petition and Show Cause O rder to be served upon the parties. In all other cases, the court may grant or deny the relief, in whole or in pa rt, witho ut a hea ring. d. Conduct of hearing. In the interest of justice, at any hearing held pursuant to this Rule the court may decline to re quire strict application of the rules in Title 5, except those relating to the comp etency of witnes ses. 22 planning hearing because such a hearing is a dispositional hearing, which does no t require mandatory application of the Rules of Evidence and permits the juvenile court to decide which rules should apply. The Department notes that the determinations made at a permanency planning h earing are v irtually identical to tho se listed in Rule 11-115d. and that certain evidence may be considered by the court in permanency planning hearings that otherwise would not be admissible, including hearsay testimony by the social workers and the CASAs. According to the Department, because permanency planning hearings are properly considered disposition hearings, strict application of the Rules of Evidence is not necessary, and the court did not abuse its discretion in declining to do so. Application of the Rules of Evidence in Permanency Planning Hearings In 1993, this Court adopted Title 5 of the Maryland Rules governing the admission of evidence during judicial proceedings.16 Specifically, we approved Rule 5-101,17 which 16 This Court s Rules Order of December 15, 1993 stated that the Rules in Title 5 and the other rules ch anges he reby adopted by this Court shall govern the courts of this State and all parties and th eir at torneys in all actions and proceedings therein . . . ; they shall take effect July 1, 1994 and shall apply in all trials and hearings commenced on or after that date; provided, how ever , that (1) any tria l or hearin g commence d prior to July 1 , 1994 shall continue to be governed by the law and Rules in effect on June 30, 1994. The language strict application of the rules of evidence, is derived from the common law governing evidence prior to the enactment of the pres ent Ru les und er Title 5 . See Wo ods v. State , 315 Md. 591, 604, 556 A.2d 236, 242 (1989) (holding that the strict rules of evidence do not apply at a sentenc ing procee ding ); Smith v. State, 308 Md. 162, 166, 517 A.2d 1081, 1083 (1986) (sam e); Town of Somerset v. Montgomery County Board of Appeals e t al., 245 Md. 52, 65, 225 A.2d 294, 302 (1966) (stating that proceedings before an adm inistrative board are info rmal an d the stric t rules of eviden ce do n ot apply ). 17 Md. Rule 5-101 states: (contin ued...) 23 17 (...continued) (a) Generally. Except as otherwise provided by statute or rule, the rules in this Title apply to all actions and proceedings in the courts of this State. (b) Rules inapplicable. The rules in this Title other than those relating to the competency of witnesses do not apply to the following proceedings: (1) Proceedings before grand juries; (2) Proceedings for extradition or rendition; (3) Direct contempt proceedings in which the court may act sum marily; (4) Small claim actions under Rule 3-701 and appeals under Rule 7-112 (c)(2); (5) Issuance of a summons or warrant under Rule 4-212; (6) Pretrial release under R ule 4-216 or release after conviction under Rule 4-349; (7) Preliminary hearings under Rule 4-221; (8) Post-sentencing procedures under Rule 4-340; (9) Sentencing in non-capital cases under Rule 4-342; (10) Issuance of a search warrant under Rule 4-601; (11) Detention and shelter care hearings under Rule 912; and (12) Any other p roceeding in which, p rior to the adoption of the rules in this Title, the co urt was traditionally not bound by the common-law rules of evidence. (c) Discretionary application. In the following proceedings, the court may, in the interest of justice, decline to require strict application of the rules o f evidenc e in this Title other than those relating to the competency of witnesses: (1) The determination of question s of fact pre liminary to admissibility of evidence when the issue to be determined by the court under Rule 5 -104 (a); (2) Proceedings for revocation of probation under Rule 4-347; (3) Hearing s on petitions for post-co nviction relief unde r Rule 4-406; (4) Plenary proceedings in the Orphan s Court under Rule 6462; (5) Waiver hearings under Rule 913; (6) Disposition hearings under Rule 915; (contin ued...) 24 delineates three categories of proceedings based upon the application of the Rules of Evidence. Subsectio n (a) provid es the gene ral rule that the rules of ev idence ap ply to all actions and proceedings in the courts of this State sub ject to certain exce ptions. M d. Rule 5-101(a). Subsectio n (b) lists those proceedings in which the Rules of Evidence do not apply, except those relating to the comp etency of witnes ses. Md . Rul e 5-1 01 (b ). Fin ally, subsection (c), entitled Discretionary application, contains proceedings, including Disposition hearings u nder Ru le 11-115 d., in which the court, in its discretion, may decline to apply th e Rule s of Ev idence . Md. R ule 5-1 01(c). In the present case, Ms. B. presents arguments similar to those of the petitioner in In re Ashley E., Laione D., Matthew B., and Gregory B.-G., __ Md. __, __ A.2d __ (2005). Specific ally, Ms. B. co ntends that d isposition he arings und er Rule 11-115d. are distinct from permanency planning hearings under Section 3-823 of the Courts and Judicial Proceedings Article, and theref ore, under R ule 5-101, the juvenile court is required to strictly apply the Rules of Evidence in permanency planning hearings. To that end, she emphasizes tha t there are different determinations that the court must make under Section 3-823 of the Courts and Judicial Proceedings Article as compared to what the court must acco mplish to co mply with 17 (...continued) (7) Modification hearings under Rule 916; and (8) Any other proceeding in which, prior to the adoption of the rules in this Title, the cou rt was auth orized to de cline to app ly the common-law rules of evidence. Md. R ule 5-1 01 (19 94). 25 the requirements under Rule 11-115d.18 In In re Ashley E., we rejected those argu ments and held that permanency planning hearings are dispositional in nature and are properly characterized as disposition hearings under Rule 11-115d. As such, we concluded that the court may, in the interest of justice, decline to require strict application of the Rules of Evidence o ther than tho se relating to the competency of witnesses. Id. at __, __ A.2d a t __. We find our holding in In re Ashley E., to be dispositive of Ms. B. s arguments. Therefore, under In re Ashley E., the juvenile court in the case sub judice, could, in the interest of justice, decline to require strict application of the Rules of Evidence, other than those relating to the competency of witn esses. Id. at __, __ A.2d at __; M d. Rule 5-101 (c). Admissibility of Hearsay Testimony in Permanency Planning Hearings In the present case, we are called up on to addr ess the criteria th at should be utilized by the trial court to determine the admissibility of hearsay evidence in permanency planning hearings after we have declined to require strict application of the Rules of Evidence. Although this specific issue is one of first impression in this Court, we have had the 18 Alte rnatively, Ms. B. argues that permanency planning hearings do not fall under the catchall provision, 5-101(c)(8), that applicable to [a]ny other proceedin g in which , prior to the adoption of the rules in this Title, the court was authorized to decline to apply the common-law Rules of Evidence. She contends that there were no provisions for permanency plan hearings prior to the adoption of the Rules of Evidence, and therefore, the catchall provision is inapplicable. Because we have concluded that permanency planning hearings are properly characterized as disposition hearings under Rule 11-115, we do not reach the issue of whether permanency planning hearings qualify u nder th e 5-101 (c)(8). See In re Ashley E., __ Md. at __, __ A.2d at __. 26 opportun ity to evaluate the criteria for admissibility of evidence when the evidentiary rules do not strictly apply in se ntencin g hearin gs and admin istrative p roceed ings. See Whittlesey v. State, 340 Md. 30, 71-72, 665 A.2d 223, 243 (1995) (noting that although the strict Rules of Evidence do not apply at a sentencing proceeding . . . . [this] does not require the admission of unreliable evidence ); Baker v. S tate, 332 Md. 542, 558, 632 A.2d 783, 790 (1993) (stating that while the strict Rules of Evidence do not apply at a sentencing proceeding, unreliable hearsay is inadmissible ); State v. Dopkowski, 325 Md. 671, 680, 602 A.2d 1185, 1190 (1992) (same); Woods, 315 M d. at 604, 55 6 A.2d a t 242 (sam e); Smith, 308 Md. at 166, 517 A.2d at 10 83 (same ); Gorin v. Board of County Com missioner for Anne Arundel County e t al., 244 M d. 106, 110 , 223 A.2d 237, 239 (1966) (statin g [w]h ile proceedings before an administrative board are informal and the strict Rules of Evidence do not apply . . . . [o]ne of the requisites in such a proceeding is that the party who carries the burden of prov ing an issue adduce substantial evidence of p robative value ). Similarly, our colleagues on the Court of Special Appeals have explored the standards for admittin g evide nce w hen the Rules o f Evid ence d o not stri ctly apply. See In re Delr ic H., 150 Md.App. 234, 248-49, 819 A.2d 1117, 1126 (2003) (holding that even though a court may decline to require a strict applicatio n of evide ntiary rules [in juv enile restitution hearings], there still exists an inherent reliab ility/credibility requirement which a proponent of the off ered ev idence must sa tisfy ). See also Prince George s County v. Hartley, 150 Md.App. 581, 595, 822 A.2d 537, 545 (2003), quoting Travers v. Baltimore Police Dep t, 27 115 Md.App. 395, 693 A.2d 378 (1997) (holding that the Rules o f Eviden ce are relaxe d in administrative proceedings; however, the evidence adduced must demonstrate sufficient reliability and probative value to satisfy the requirements of procedural due pro cess ); Kitchen v. State, 87 Md.App. 299, 303, 589 A.2d 575, 577 (1991) (determining that in probation revocation proceedings formal Rules of Evidence are not applied, and that reasonab ly reliable hearsa y may be re ceived ) (emp hasis ad ded). Consistent with this view, sev eral of our s ister states have held that in juv enile proceedings in which r ules of evid ence are n ot strictly applied, ad missibility of evid ence must be base d upon reason able ind icia of re liability and trustwo rthiness . See In re C.J., 764 N.E.2d 1153, 1160 (Ill.App.3d 2002) (stating that in a juvenile proceeding the formal rules of evidence are relaxed and that all evidence shall be admissible if it is relevant and reliable ); In re Sara M., 239 Cal.Rptr. 605, 611 (Cal.App.3d 1987) (finding that the rules of evidence are relaxed in dependency proceedings but expert evidence not shown to be reliable . . . r emain s inadm issible ) . Similarly, state courts addressing administrative proceedings in which the rules of evidence are relaxed have held that the e vidence to be admitted must possess some degree of reliability and trustworthiness. See e.g., Alix v. E-Z Serve Corporation, 846 So.2d 156, 159 (La.App. 2003) (holding that in workers compensation matters, the technical rules of evidence are relaxed, but findings mu st nonetheless be based on competent ev idence which is evidenc e [that] has so me degre e of reliability and trustworthiness and is of the type 28 that reasona ble person s would re ly upon ); New London H ousing Authority v. State Board of Labor Relations, 820 A.2d 332 , 338 (Conn.Su pp. 2001) (noting that in administrative proceedings the rules of evidence are relaxed and that the court may consider any materials that are reliable an d probative ); Bean v. Montana Board o f Labor A ppeals, 965 P.2d 256, 260 (Mont. 1998) (determining that although the rules of evidence are more relaxed in an administrative proceeding than in a court of law, the evidence adduced must be reliable and probative). Addressing the specific issue before us, we conclude that in permanency planning hearings when th e Rules of Evidenc e are not strictly app lied, the trial cour t must evalu ate whether evidence proffered for admission is sufficiently reliable and probative prior to its admiss ion. Ms. B. contends that the trial court should have sustained her objections to portions of the testimony of the DSS social worker, Ms. Caceres, which contained hearsay statements.19 During the May 5, 2004 hearing, the trial judge admitted the testimony of Ms. Caceres, who stated that as a part of her duties, she was charged with gathering information to make determinations and recommendations to the court concerning the best interests of the children . See Md. Code (1984, 1999 Repl Vol.), § 5-525 of the Family Law Article. Ms. Caceres testified about Ms. B. s conduct and conversations during visits with the children, 19 Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidenc e to prove the truth of the matter asserted. Md. Rule 5801(c) . 29 the children s feelings toward Ms. B., and the children s behavior following visits with Ms. B. Ms. Caceres s testimony also included statements concerning the progress of the children s therapy sessions based upon information provided by the psychologist conducting the therapy sessions. Most of the information that Ms. Caceres conveyed to the court was related to her direct o bservation s of both parents and the children. Therefore, we conclude that Ms. Caceres testimony was sufficiently reliable and probative based upon her responsibilities and opportunity to observe both parents and the children. Court Appointed Special Advocates Ms. B. also urg es this court to determine that the trial court improperly admitted the testimony of the CASA volunteers during the hearing. The present case involves the use of CASAs in a juvenile proceeding, which previously has not been addressed by this Court or the Court of Special Appeals. Therefore, a discussion of CASAs and their role in such procee dings is warra nted. Because of grow ing conce rn regardin g the lack o f quality legal representation for abused and ne glected children , in 1974 the Child Abuse Prevention and Treatment Act ( CAPT A ), was enacted by C ongress. It required that in every case involving an abused or neglected child which results in a judicial proceeding a guardian ad litem shall be appointed to represent the child in such proceedings. Pub.L. No. 93-247, § 4(b)(2)(G), 88 Stat. 4 (1974), codified as 42 U.S.C. §§ 5101-5107 (1994). In response to CAPT A s mandate, Judge David Souk up, a Superior Court Judge in Seattle, Washington, introduced 30 the concept of utilizing volunteers to act as guardian ad litems ( GAL )20 for children in abuse and neglect c ases , and in 19 77, b egan a chi ld ad vocacy program called Cou rt Appointed Special Advocate ( CASA ). A CASA has been described as a trained commu nity volunteer, appointed by a judge, to represent the best interests of children in cases that come before the court due to alleged abuse or neglect. N ATIONAL C OURT A PPOINTED S PECIAL A DVOCATE A SSOCIATION, JUDGE S G UIDE TO CASA/GAL P ROGRAM D EVELOPMENT [hereinafter NCASAA J UDGE S G UIDE ] 15 (2 004). In 1982, a National Court Appointed Special Advocate Association [hereinafter NCASAA ] was established to create uniform standards for newly formed as well as expanding state programs. Thereafter, in 1990, Congress enacted the Victims of Child Abuse Act, which endorsed CASA programs and called for expanding the utilization of CASA volunteers by makin g them availab le to eve ry victim o f child a buse o r neglec t. See 42 U.S.C. §§ 13011 -1301 4 (199 4). In addition, the Act provides federal funds to develop statewide 20 In Goldberg v. Miller, 371 Md. 591, 607 n. 4, 810 A.2d 947, 956 n.4 (2002 ), this Court discussed the traditional role that guardians ad litem play for children in Maryland: When the court appoints an attorney to be a guardian ad litem for a child, the attorney s duty is to make a determination and recommendation after pinpointing what is in the best interests of the child. The attorney who assumes the traditional guardian ad litem role has a res ponsibility prima rily to the court and therefore has absolu te immunity for judicial functions, which include testifying and making reports and recommendations. This more traditio nal role is defined by the court and the attorney looks to the court for direction and remuneration. Id. (citation and footnote om itted). 31 CASA programs and establishes criteria th at a program requesting funds m ust meet to qualify. Victim s of Ch ild Abu se Act o f 1990 , Pub. L . No. 101-6 47, § 211. Th e statute requires, in pa rt: 1. A CASA association must hav e a mission and purp ose in keeping with the National CASA Association and that it abide by the National CASA Association Code of E thics; 2. A CA SA pro gram mu st operate w ith access to legal cou nsel; 3. The management and operation of a CASA program must assure adequate supervision of court appointed special adv ocate volunteers; 4. A CASA program must keep records on the operation of the program in general, and on each appellant, volunteer and case; 5. A CA SA pro gram mu st have w ritten management and personnel policies and procedures, screening requirements, and training curriculum; 6. A CASA program will not accept volunteers who have been convicted of, or have charges pending for, or have in the past been charged w ith, a felony or misdemeanor involving a sex offense, violent act, ch ild abuse or neglect, or rela ted acts that would pose risks to children or to the CA SA program s cred ibilit y; 7. A CASA program must have established procedures to allow the immediate reporting to a court or proper agency of a situation in which a CASA volunteer has reason to believe that a child is in imminent dang er; 8. A CASA volunteer must be an individual who has been screened and trained by a recognized CASA program and appointed by the court to advocate for the children who come before the court system primarily as a result of ab use or neg lect; and 9. A CASA volunteer serves the function of reviewing records, facilitating prompt, thorough review of cases, and interviewing appropriate parties in order to make recommendations on what would be in the best inte rest of th e child. Victim s of Ch ild Abu se Act o f 1990 , Pub. L . No. 10 1-647 , § 211. 32 CASA programs provide training for community volunteers to advocate for the best interests of children who co me into the court system p rimarily as a result of alleged abuse or neglect. See S TANDARDS FOR N ATIONAL CASA A SSOCIATION M EMBER P ROGRAMS [hereinafter NCASAA S TANDARDS] 1 (2002). The programs also ensure that volunteers have regular, in-person contact with the child sufficient to have a working knowledge of the situation and to m ake fa ctual rec omm endatio ns to the court. See NCASAA S TANDARDS at 1. According to NCASAA s Standards for National CASA Association Member Programs, each CASA volunteer receives training consisting of approximately thirty hours of instruction, conducted by the local CAS A pro gram. Id. at 22. NCASAA recommends that CASA volunteers receive instruction in topics such as child sexual abuse, early childhood developm ent, adoles cent be havior , and ad vocac y techniq ues. Id. The NCASAA Standards require that CASAs should receive instruction in courtroom procedure from the principals in the syste m, ie., judges , attorneys , social w orkers, a nd cou rt person nel. Id. According to the NCASAA Judge s Guide to CASA Program Development, a CASA volunteer, as a part of his or her duties, should: 1. Conduct an independent investigation by reviewing all pertinent documents and records and interviewing the child, parents , social w orkers, f oster pa rents, teachers, therapists, daycare providers and other relevant persons to determine the facts and circumstances of the c hild s situation. To do this effectively, volunteers spend considerab le time getting to know children and gaining their trust. 2. Determine the thou ghts and feelings of th e child 33 about the situation, taking into account the child s age, matu rity, culture and ethnicity and degree of attachment to family members, including siblings. Also to be considered are continuity, consistency and a sense of belo ngin g and ide ntity. 3. Seek cooperative solutions by acting as a facilitator and mediator among conflicting parties to achieve resolution of problems and to foster positive steps toward achieving permanence for the child. 4. Provide written reports at every hearing which include findings and recommendations. The report documents the extent of the volunteer s investigation, lists each sou rce of info rmation an d includes sufficient facts to justify the recommendations. 5. Appear at all hearings to advocate for the child s best inter ests a nd provide te stimony w hen nece ssary. 6. Expla in the court proceedings and the role of the CASA volunteer to the child in terms the child can understand. 7. Make recommendations for specific, appro priate services for the child and the child s fam ily and advoc ate for necessary serv ices which may not be im mediately available. 8. Monitor implementation of case plans and court orders, checking to see that cou rt-ordered services are implemented in a timely manner and that review hearings are held in accordance with the law. 9. Inform the court prom ptly of important developme nts including any agency s failure to provide services or the family s failure to participate. The CASA volunteer should ensure that app ropriate motions are filed on behalf of the child in order that the court can be made aware of the changes in the child s circumstances 34 and can take appropriate actions. 10. Advocate for the child s interests in the com munity by bringing concerns regarding the child s health, education and mental he alth, etc. to the ap propriate pro fessionals to assure that the child s need s in these area s are met. NCASAA J UDGE S G UIDE at 17. Moreover, CASA volunteers may be subject to dismissal for having taken action without program or court approval that end angers the child or outside the role or purview of the CASA program. The service of CASA volunteers als o ma y be terminated for engag ing in an ex parte communication with the court; violating a program policy, court rule, or the law; failing to comple te required tra ining or to ca rry out effective ly his or her assigned duties; or if allegations of abuse or neglect are brought against the CASA. See NCASAA S TANDARDS at 25. To date, there is at least one CASA program in each of the fifty states, and the majority of states also have enacted statutes establishing CASA programs and defining the role that the CASA volunteers play in child abuse and neglect cases. Many state courts have sanctioned the use of CASA volunteers and have allowed them to submit reports and recommendations, as well as testify regard ing their finding s. See e.g., In re K.L.S., 94 P.3d 1025 (Wyo. 2004 ); In re T.H., 131 S.W .3d 598 (T ex.App . 2004); In re R.A.R., 577 S.E.2d 872 (Ga.Ap p. 2003); Arkansas Dept. of Human Services v. Collier, 95 S.E.3d 772 (Ark. 2003); In re D.F., 777 N.E .2d 930 (Ill. 20 02); In re W.B., 772 N.E.2d 522 (Ind. App. 2002); In re J.W., 43 P.3d 1273 (Wash.A pp. 2002 ); In re A.T.H., 37 S.W.3d 423 (Mo.App . 2001); Div. Family Services v. Hutton, 765 A.2d 1267 (D el.Supr.Ct. 2 001); Adoption of Georg ia, 35 739 N.E.2d 694, 699-700 (Mass. 2000); In re Samantha M., 518 S.E.2d 387, 390-91 (W.Va. 1999); Adoption of Tina, 701 N.E.2d 6 71, 676 (M ass.App.C t. 1998); In Interest of N.M., 528 N.W.2d 94 (Iowa 1995); In re Autumn H., 32 Cal.Rptr.2d 535 (Cal.App.4th 1 994). In particular, CASA volunteers have testified about the f amily dynamics among th e parent, child, and foster-parents and the extent of the services being offered to accommodate the child s needs, and have provided reco mmend ations to the c ourt regard ing the app ropriate placement for the c hild. See e.g., In re A.C.O., 605 S.E.2d 77 (20 04); Fresno C ounty D ept. Children & Fam. Services v. Superior Court, 19 Cal.Rptr.3d 155 (Cal.App .4th 2004); In re J.P., 601 S.E.2d 409 (Ga.Ap p. 2004); In re Tara P., 836 A.2d 219 (R.I. 2003); In re E.M., 810 So.2d 59 6 (Miss. 20 02); Larscheid v. Arkansas Dept. of Human Services, 36 S.W.3d 308 (Ark. 2001); In re Adoption of C.D., 729 N.E.2d 553 (Ill.App. 2000); Padilla v. N orfolk Div. of Social Services, 472 S.E.2d 648 (Va.App. 1996); Matter of Gail, 629 N.E.2d 1308 (Mass. 1994) . The mechanisms by which the programs operate, however, differ among the states. Most states have general statutes that establish CASA programs by defining the program s purpose and setting f orth how the program is to be administered, including funding, training, selection, and supervision of the CASA volunteers, but do not define the role of CASA volunteers in juvenile and family proceedings beyond a generic description of those duties and responsibilities.21 These states utilize informal ways of integrating CASA volunteers into 21 See A K. S TAT. § 44.21.460 (1988 ); F LA. S TAT. A NN. § 39.807 (1990); G A. C ODE A NN. (contin ued...) 36 the judicial process by allowing the CASA program to formulate its own guidelines, procedures, and policies related to the scope of the CA SA s duties. In these instances, there is no statute or court rule that enumerates the extent of a CASA volunteer s involvem ent in the judic ial proce ss. Con vers ely, approxim ately fourteen states have fo rmal mechanism s that are statutorily-mandated for defining the scope of a C ASA volunteer s responsibilities in juvenile proceedings.22 For example, the State of California has a comprehensive statutory scheme that sets forth the requireme nts a CA SA pro gram mu st follow to be recognized and 21 (...continued) § 15-11-9 (1986); 705 ILL. C OMP. S TAT. A NN. 405/2-17 .1 (1993); I ND. C ODE A NN. § 31-9-228 (1997); M E. R EV. S TAT. A NN. T ITLE 22 § 4005 (1985); M D. C ODE (1989), § 3-830 OF THE C OURTS AND J UDICIAL P ROCEEDINGS A RTICLE ; M ICH. C T. Rule 3.91 7 (2003); M INN. C T. R ULE 26.01 (2003, 2005 Su pp.); M O. A NN. S TAT. § 476.777 (2001); M ONT. C ODE A NN. § 413-1013 (1993); N.H. R EV. S TAT. A NN. § 490-C:6 (2002 ); N.J. C T. R ULE 5:8C (1 998); N .M. S TAT. A NN. § 32A-1-4 (199 3) AND N.M. C T R ULE 10-121 (1995 ); N.Y. S OCIAL S VCS. L AW § 392 (200 4 Cum . Supp.); O HIO R F RANKLIN J UV. C T. R ULE 4 (1990); O KLA . S TAT. A NN. T ITLE 10 § 1211 (1989); 34 O R. R EV. S TAT. §§ 419A.004 , 419A.170 (19 93); R.I. G EN. L AWS § 40-11-7 (1990); S.C. C ODE A NN. §§ 20-7-121 (1988); S.D. C ODIFIED L AWS § 16-2-51 (2003); T ENN. C ODE A NN. §§ 37-1-149 (1990); U TAH C ODE A NN. § 78-3a-9 12 (1994 ); W ASH C ODE A NN. § 13.34.030(8), 13.34.102 to -.107 (2000); W.V. C T. R ULE OF P RO. F OR C HILD A BUSE AND N EGLECT 52 (19 97). 22 See A RIZ. R EV . S TAT. A NN. §§ 8-522 to 523 (19 91); A RK. C ODE A NN. §§ 9-27-316 (1989); C AL. C T. R ULE 1424 (1994, 2005 S UPP.) A ND C AL. W ELF. & INST. C ODE A NN. §§102104 (1998); C OLO . R EV. S TAT. A NN. § 13-91-10518-3-412.5 (2000) AND C OLO . R EV. S TAT. A NN.§§ 19-1-111 .5, 19-1-11 2 (1996); D EL. C ODE A NN. TIT . 31 § 3603 to 3617 (19 95); I OWA C ODE A NN. §§ 232.89, 232.126 (1987); K AN. S TAT. A NN. 38-1606a. (1994) AND K AN. D IST. C T. R ULE 110. (1986); K Y. R EV. S TAT. A NN. §§ 620.51 5 to -.525 (1 990); L A. C ODE J UV. P ROC. A NN. art. 424 (1991, 2005 S upp.); N EB. R EV. S TAT. §§ 43-272.02, 43-3701 to 43-3716 (2000); N EV. C T . R ULE 5.69 (2000); 42 P A. C ONS. S TAT. A NN. §§ 6302 , 6342 (19 98); V A. C ODE A NN. § 9.1-151 to -157 (200 1); W IS. S TAT. A NN. § 48.236 (1999). 37 specifically defines the CASA volunteer s duties to include interviewing and observing the parties involved in the case, reviewing relevant records and reports, filing a report with the court, and monitoring cases a ssigned to the vo lunteer b y the judg e. See C AL. W ELF. & INST. C ODE § 100- 104 (1 988). Similarly, the State of Colorado has a statutory scheme that enumerates the duties and responsibilities of a CAS A volunteer, which include: conducting independent investigations regarding the child, providing factual background information to the court in the form of a report, interviewing relevant individuals, reviewing records, making recommendations to the court, and tes tifying in c ourt pro ceedin gs. See C OLO . R EV. S TAT. A NN. § 13-91-105 (200 0). Other state statutes have allo wed C ASA volunteers a more ex pansive ro le in advocating for the child. In those instances, the CASA volunteer is p ermitted to p articipate in depos itions, ne gotiatio ns, disco very, pretr ial conf erence s, hearin gs, and appea ls. See e.g ., A RIZ. R EV. S TAT. A NN. §§ 8-522 to 523 (1991); D EL. C ODE A NN. TIT . 31, § 3603-3610 (2000); K AN. S TAT. A NN. 38-1606a. (1994). In Maryland, the Court-Appointed Special Advocate Program was enacted to establish the use of C ASA s in juvenile procee dings. See 1989 Md. Laws, Chap. 641. The statute has not changed substantively since its enactment and was recodified as Maryland Code (1989, 2002 Repl. Vol.), § 3-830 of the Courts and Judicial Proceedings Article, in 2001.23 The 23 Md. Code (1989, 2002 Repl. Vol.), § 3-830 of the Courts and Judicial Proceedings Article, states: (a) Definitions. (1) In this section the following words have (contin ued...) 38 Maryland CASA Program is county-oriented and is dependent on court 24 appointment of 23 (...continued) the meanings indicated. (2) Advocate o r C.A.S.A. m eans a Court-A ppointed Special Advocate. (3) Program means a Court-A ppointed S pecial Ad vocate service that is created in a county with the support of the court for that county to provide trained volun teers whom the c ourt may appoint to: (i) Provide th e court w ith backgro und info rmation to a id it in making decisions in the child s best interest; and (ii) Ensure that the child is provided appropriate case planning and services. (b) Establis hed; pu rpose; a dminis tration; ru les. (1) There is a Court-Appointed Special Advocate Program. (2) The purpose of the Program is to provide volunteers whose primary purpose is to ensure that children who are the subject of a CINA proceeding are provided with appropriate service and case plann ing that is in the ir best interest. (3) The Administrative Office of the Courts: (i) Shall administer the Program; (ii) Shall report annually to the Chief Judge of the Court of Appeals and, subject to § 2-1246 of the State Government Article, to the General Assembly regarding the operation of the Program; and (iii) May adopt rules governing the implementation and operation of the Program including funding, training, selection, and supervision of volunteers. (c) Funding. The Governor may include funds in the budget to carry out the provisions of this section. (d) Liability. An advocate or a member of the administrative staff of the Pro gram is no t liable for an ac t or omission in providing services or performing a duty on behalf of the Program, unless the act or omiss ion constitute s reckless, w illful, or wanto n miscon duct or inten tionally tortious co nduct. 24 Court under this su btitle mean s the circuit co urt for a cou nty sitting as the juven ile court. Md. Code (1973, 2002 R epl. Vol.) § 3-801 of the Courts and Judicial Proceedings (contin ued...) 39 trained volunteers whose primary purpose is to ensure that children who are the subject of a CINA proceeding are afforded appropriate services and case planning that is in their best interests. See Md. Code, §3-830 (a)(3) and (b)(2) of the Courts and Judicial Proceedings Article. Maryland s CASA statute pro vides a generic description o f a CASA volunteer s responsibilities and functions in a juvenile proceeding. According to the statute, a court may appoint a CASA volunteer to [p]rovide the court with back ground in formation to aid it in making decisions in the child s best interest; and to [e]nsure that the child is provided appropriate case pla nning a nd serv ices. M d. Cod e, § 3-830(a)(3) of the Courts and Judicial Proceedings Article. Rather than explicitly outlining the duties and responsibilities of CASA volunteers, the statute auth orizes the A dministrative Office of the Courts to adopt rules governing the implementation an d operation of the Program including funding, training, selection, and supervision of volunteers. Md. Code, § 3-830(b)(3)(iii) of the Courts and Judicia l Proce edings Article. The Guidelines adopted by the Administrative Office of the Courts in 1989 dictate how the CASA programs are to be structured and operated, the requirements for volunteer training and supervision, and the funding requirements for the progra ms. See A DMINISTRATIVE O FFICE OF C OURTS CASA R ULES AND G UIDELINES [hereinafter AOC CASA G UIDELINES ], 1 (2004). The G uidelines describe the role of the CASA volunteer: 24 (...continued) Article. 40 The CASA volunteer is considered a Friend of the Court and does not have p arty status. The volunteer is considered an agent of the court and is appointed at the judge s d iscretion to represent the child s best interests. Volunteers are not represented by an attorney but sho uld be pro vided acc ess to legal counsel by the program. AOC CASA G UIDELINES at 1. The Guidelines a lso define the responsibilities of a CASA volunteer, those being : to review the case history and juvenile court file; to meet with the CASA staff to develop a case plan; to schedule and attend appointments with relevant parties; to complete required CASA forms and docu mentation ; to maintain th e confide ntiality of any and all information received on behalf of the child; and to submit a w ritten report to the cou rt. See AOC CASA G UIDELINES at 4. CASA volunteers have bee n permitted to testify in court p roceeding s and subm it recommendations relating to child p laceme nt. See e.g., In re Justin D., 357 Md. 431, 438, 745 A.2d 408, 412 (2000) (pe rmitting CA SA volu nteer to recommend during a permanency planning review h earing that ch ild s perman ency plan sho uld remain one of long-term foster care). We are called upon here to delineate the boundaries for testimony by a CASA volunteer in a permanency planning hearing. During the hearing in the case sub judice, the trial court, sua spon te, called the CASA volunteers assigned to the case by the Circuit Court to testify during the hearing. Each CASA volunteer then testified, while not under oath, about statements made by the children and the children s foster-mother in addition to clarifying certain factual statements m ade in a report submitted to the court and reviewed by the parties. The CASAs testimony prim arily 41 consisted of statements made by the children expressing their feelings toward Ms. B. and the children s behavior f ollowing visits with Ms. B. The CASAs conveyed facts to the court that were based upon their direct observations of the children an d meetings with the f ostermother. As such, we conclude that the testimony provided by each CASA volunteer was reliable a nd pro bative o f the issu es relatin g to the c hildren . Although we have stated previously, that the court may, in the interest of justice, decline to require strict application of the Rules o f Eviden ce, it must strictly adhere to rules relating to the co mpete ncy of w itnesses . See In re Ashley E., __ Md. at __, __ A.2d at __ (holding that in permanency planning hearings the court may, in the interest of justice, decline to require strict application of the rules of evidence other than those relating to the competency of witnesses ), quoting Md. Rule 5-101(c). O ne comp etency requirem ent is contained in Maryland Rule 5-603, which states: Before testifying, a witness shall be required to declare that the witness will testify truthfu lly. The dec laration shall b e by oath or affirmation administered either in the form specified by Rule 1-303 or, in special circumstances, in som e other form of oath or affirmation calculated to impress upon the witness the duty to tell the tru th. In this instance, the trial judge required each witness, except the CASAs, to take an oath prior to testifying at the permanency planning hearing, including the social workers who testified. Clearly, the CASA volunteers should have been required to comply with the dictates of Rule 5-603 , but the omission of such was waived in the present case when the parties failed to object o n this ba sis. See Perry v. State, 381 Md. 138 , 848 A.2d 631 (2004), 42 in which w e held that, [ i]f incomp etency is not kn own w hen the w itness is called, an objection should be made as s oon as the incompe tency becom es apparen t. Otherwise the objection is waived. Id. at 146 n.4, 848 A.2d at 636 n.4. See also Schaefer v. Cusack, 124 Md.App. 288, 313, 722 A.2d 73, 86 (1998) (holding that objection to a witness s testifying who has not m ade an oa th or affirm ation will be considered waived unless made before the testimony or, if the witness is not on the stand as soon as it should be apparent that the witnes s is testifyin g ). Ms. B. further argues, however, that the trial judge improperly admitted hearsay testimony of the CASAs because she did not hav e an adeq uate opportunity to cross-examine the CAS As du ring the perma nency pl anning hearing . CAS As, when they testify in permanency plan ning review h earin gs, m ust b e sub ject to cro ss-exam inati on, a s any o ther witness. See Mayor and Council of Rockville v. Woodmont Country Club, 348 Md. 572, 582, 705 A.2d 301, 306 (1998) (holding that in administrative proceedings the parties have a right to reasonab le cross-exa mination o f witnesse s); Imperial v. Drapeau, 351 Md. 38, 716 A.2d 244 (1998) (determining that in administrative proceedings the parties must be afforded an opportun ity to cross-examine the witness es); Town of Somerset, 245 Md. at 66, 225 A.2d at 302 (holding that in administrative proceedings [a]ll parties must be fully apprised of the evidence submitted or to be considered, and must be given the opportunity to cross-examine witnesses ). This issue, however, was not preserved by sufficient objection at the trial court level, so that we do not h ave oc casion to review it. 43 IN THE COURT OF APPEALS OF MARYLAND No. 100 September Term, 2004 IN RE BILL Y W ., JESS ICA W ., MARY S. & GEORGE B. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. as to Part II, joined by Raker, Wilner, and Greene, JJ. Filed: June 13, 2005 PART II Mr. B s Appeal The Court is divided as to the pro per disposition of M r. B s appeal. Thus, the C ourt s opin ion is serialized, o f nec essit y. Mr. B. asserts that the trial court abused its discretion in maintaining the extant permanency plan and supervised visitation of one vis it per month, with George B., neither of which is appealable under our decision in In re Sa mone H., 385 Md. at 316, n.13, 869A.2d at 390, n.13. Judge Battaglia, for the Court, disposed of this issue in Part I of the Court s opinion. Mr. B. also argues that the Circuit C ourt erred in requiring h im to pay for o ff-duty law enforcement to supervise the visitations with George B., inasmuch as such a condition operated to eliminate virtually his visitation with George B. because of Mr. B. s claimed indigence. DSS argues that the trial court properly exercised its discretion in maintaining the permanency plan and imposing the added condition on Mr. B. s future visitations. In supp ort of its contention, DSS no tes that the trial court s requirement that M r. B. hire an office r to monitor the visitation was warran ted, given Mr. B. s past history of sexual abuse and inability to control himself during a prior visit with George B. Decisions concerning visitation generally are w ithin the sound discretion of the trial court, and are not to b e disturb ed unle ss there h as been a clear a buse o f discre tion. In re Yve S., 373 M d. 551, 566 -67, 819 A .2d 1030 , 1039 (20 03); In re Mark M., 365 Md. 687, 705-06, 782 A.2d 332, 343 (2001). The court must decide and set forth the minimal amount of visitation that is appropriate and that DSS must provide, as well as any basic conditions that it believes, as a minimum, should be imposed. In re Justin D., 357 Md. 431, 450, 745 A.2d 408, 418 (2000). Because the trial court is required to make such determinations in the best interests of the child, visitation may be restricted or even denied when the child s health or welfare is threate ned. In re Yve S., 373 Md. at 566-67 , 819 A.2d at 1039; In re Mark M. 365 Md. at 705-06, 782 A.2d at 343. Where the child has been declared a child in need of assistance because of abu se or neglect, the trial court is constrained further b y the requireme nts of Section 9-101 of the Family Law Article when setting the conditions of visitation. Section 9-101 states: (a) Determination by court. In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has be en abuse d or neglec ted by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party. (b) Specific finding required. Un less the cou rt specifically finds that there is no likelihood of further child abuse or neglect by the party, the cou rt shall deny custo dy or visitation righ ts to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child. Md. C ode (19 74, 199 9 Rep l. Vol.), § 9-101 of the F amily La w Art icle. Thus, when a court has reasonable grounds to believe that neglect or abuse has occurred, as did the court in this case, custody or visitation must be denied, except for supervised visitation, unles s the court m akes a spe cific finding that there is no likelihood of 2 further abuse o r neglec t. In re Yve S., 373 Md. at 56 6-67, 819 A.2d at 1039. If the court determines, as an exception, that supervised v isitation is appropriate, the court must assure, at a minimum, that such visitation will not jeopardize the safety and well-being of the child. As a part of our review of the present case, we must scrutinize the factual findings of the juvenile court. The juvenile judge s findings with respect to M r. B. s visitation w ith George B. during the hearing, and in support of her subsequent order, were as follows: Mr. B. is I mean, the argument to me, essentially, is that he is not at risk of abusing h is child, and therefore, the plan should be reunification with Ms. B., and his contacts should be unsupervised. This difficulty that I have with the argument is the following: Mr. B. has acknowledged, and I credit his candor, but he has acknowledged sexually abusing three children. *** The ripple and collateral affect of that have been tremendous. And the problem w ith abuse is tha t it s not simply the abuse on the direct victim, but the lies and the cover-ups, and the ripples througho ut the fam ily that are just incred ibly long-lasting, and they have tremendous impacts on children. And this c ase, if nothin g else, points to that. The fact tha t Mr. B . would not sexually abuse his own child does not answer the question of whether it would be appropriate for him to be the person who should have parenting responsibility for the child ; because th e failures and laps es in judgment that were part and parcel of the problems surrounding the abuse, while being addressed at some extent in therapy, they still exist. And the other piece of that is that Mr. B. has demonstrated issues in anger management that are not insig nific ant. H e is addre ssing tho se also th erap eutic ally. I commend his candor on the stand and the fa ct that he is extremely dedicated to do the things that he is required to d o in therapy and on probat ion. There is still a lot of work to be done. 3 The difficulty is, the thing that s the sole focus of the anger right now is this case. It completely un dermines his ability to work with the Department or to accept the opinions or views of othe rs if they ru n coun ter to w hat he th inks. And that has been demons trated in recent contacts at the Department and with the social workers, the most recent one giving rise to an incident involving police officers, whose view of what happened that day I found far more credible than Mr. B. I don t think he intentionally - - I just think that he sees the world in very different ways. *** The question as to visits for Mr. B. is complicated by the fact that . . . I would not burden the Department with supervising visits if the Department s agents didn t reasonably feel that they were safe in his presence or felt threatened in his presence. But, they do feel threatened in his presence, and I think there is demon strable reaso n for that. I still, though have the difficulty of whether the child should have some contact with his father, an d I am truly strug gling with th at. Mr. B. is work ing right now and he has some financial ability to contribute towards things. [MR . B]: I don t. [THE COUR T]: Well, that s going to be a problem for you. [MR. B.]: In a few m onths. Right now I m payin g a lot. M y medical benefits are cut off and there are prob ationary requirements. [THE COURT]: Mr B., now is not the time for you to be speaking. To the extent that I wo uld permit v isits to continue it would only be done with an outside monitor in place and in a neutral site. It is my understa nding that some of the sheriffs that are off duty will monitor supervised visitation and they ll do it at a fee. I am advis ing [Mr. B. s Cou nsel] of that, th at I would consider a proposal for supervised visits by an outside monitor 4 who is an off-duty law enforcement person, but it s going to be at Mr. B. s expense. [MR. B. S COUNSEL]: Your Honor, if the Young Fathers/R esponsible Fathers program that Mr. H. represents, if they have a function lik e that, or a pro gram like th at, would that be acceptable? [THE COU RT]: I want it to be something that I have very tight controls over, for what the parameters are for the visitation, because, quite frankly, Mr. B. will push the bounds of whatever I set, so I m not sure that I am going to go with a program like that. I would allow an outside supervisor who would be an offduty police officer who would be doing one-on-one supervision, and do it, ag ain, as a mo nthly visit. It will be at his expense, and it will be his burden to come up with a plan for it, because h e forfeited the right to have the Department supervise it as a function of his own behavior and conduct in visits, and I found the evidence on that to be overwhelmingly credible. So, I m not going to hav e social workers feeling at risk in his presenc e. When visits were g oing smo othly, they don t. As soon as anything happens, when it doesn t go the way he thinks that it should be, they have felt threatened, and I find reasonab ly so, and in fa ct he acted o ut with a po lice officer, w ith several officers. So, that would be the restriction on the visitation. Based upon the judge s findings, there were reasonable grounds to believe that a child had been abused b y Mr. B. because of M r. B. s acknowledgment to the court that pre viously he abused three children. W e have he ld that neglec t or abuse o f a child in the past refers to the abuse or neglect of any child in t he past , not only the child at issue in the current proceeding. See In re Adoption No. 12612, 353 Md. 209, 725 A.2d 1037 (1999). Therefore, 5 unless the judge made a specific finding that no future abuse o r neglect was likely to occur, she was required to deny visitation to Mr. B. or order supervised visitation. Vacation of the judgm ent as to M ichael B. s c ase, as called f or in the disse nt, is unwarranted on this record and is premised on a misapplication of the provisions of § 9101(b) of the Family Law Article. For the reasons to be explained, affirmance of the trial court s j udgm ent is in o rder. The dissent postulates that if M r. B. s proffer to the trial court that he could not pay for the services of an off-duty police officer is credited, then he effectively has been denied visitation. The premise of this position, in th e Majority s v iew, conta ins an inacc urate assumption and is u nsupp orted in the reco rd. Du ring dire ct exam ination o f Mic hael B . by his counsel at the Circuit Court hearing on 5 May 2004, the following colloquy occurred: Q. Has th e Departm ent ever ask ed you to pay ch ild support? A. Nob ody asked m e to pay child su pport. Q. Are you working? A. Yes. Q. Has the Department garnished your wages at all for child support? A. No. Q. There was no Court proceeding? A. No. C orrect. Q. And you have no proble m paying ch ild support for Georgie? 6 A. Right. It s not necessary for me, for my wages to be garnished for it, because I offer everything that I have to my son, his mother and the rest of the children. * * * A. - - I m trying to atten d school. I was in atten dance trying to become a pharmacist in an alternative medicine practice-type pharmacy. Later in that hearing, during cross-examination by DSS s trial counsel, Mr. B. testified as follows: Q. Mr. B., you are living at 102 East 20th Street; is that cor rect? A. Yes. Q. And what is that, a house or a n apartme nt? A. It s a two -level. I live in the first level of th e apartme nt. Q. You rent your own apartment there? A. Yes. I h ave the w hole first leve l. Q. And you said that you are employed? A. Yes. Q. Where do you work? A. Right now I work at - - through the plumbers and steamfitters union. I work for Herton (phonetic) Mechanical and I also do part-time work at my old temp agency Rea dyStaffing. Q. Your work, is it a full-time job? A. Full-time. I make $12.95 an hour and I will be going for an interview with my apprenticeship on the 12th of this month and making $14.00 an hour. It used to be $13.00 - something. 7 Q. How long have you been with your current employer? A. How long? Since March the 17th , with that employer. But prior to that I was working seven days, twelve hours a week, seven days a week and twelve hours a day at fire watch, from just b efor e Ch ristm as Eve th roug h part of Feb ruar y. Then it was like two or three weeks where I was only doing part-time work, and then I was called to the plumbers and steamfitters union that I applied to six months before. I had applied to every union that I could apply to. Knowing that t hey do lay o ff, and without conflicting with the union. I could be o n the book s already waitin g. With the carpenters union also and the elec trical union, that s still in the process. Q. You have a fairly decent income? A. Yes. Q. [Your a ttorney] asked you about child support. Did you volunteer to pay any child sup port? A. I do volunteer to pa y it to Tammy [B.]. Q. Well, she doesn t have the child. What good would that do? A. She will get the children. Q. Well, someone is paying for his care right now. That s why I am askin g you. Are you paying anything towards th at. A. No, I m not. Except for - - no. Not really. Not much at all. Q. Is there any reason why you haven t volunteered to do so? A. Volunteered to do so? Q. Yes. We all pay for our children s support. No one makes us. A. Basically, I feel like I would be happy to, but I don t have any contact to know what that money would be spent on. I have 8 no contact with Georgie s foster-parent right now, and the other two didn t ask for it. But yeah, I would be happy to pay child su pport. At the moment it would take a few months because I am in an adjustment now, right now, paying for my own m edicine, and its costs $600 a month. Thus, the state of the record before the trial court was not confined to a proffer of Mr. B. s inability to afford to pay for the cos t of an off -duty law enf orcemen t officer to monitor the one-hour per month supervised visitation.1 Rather, the Circuit Court, based on evidence supplied by Mr. B., had sufficient actual evidence before it from which to arrive at a reasoned conclusion that Mr. B . likely could afford the additional condition of continued supervised visitation. Mr. B. s apparent qualification for lega l representation by the Public Def ender s Office in this matter, both in the Circuit Co urt and bef ore us, doe s not establish his inability to afford the expense of the off-duty officer condition. In the absence of any evidenc e as to what his financial condition was at the time cou nsel was a ssigned to h im by the Pub lic 1 We assume the dissenting opinion s characterization of proffer flows from Mr. B. s spontaneous negative interjection ( I don t. ) when the Court, as it explained its ruling, stated, that Mr. B. . . . has some financial ability to contribute towards things. Mr. B. continued to interrupt the court s explanation for its rulin g by stating that h e apparen tly would be able to af ford som ething [in a few m onths]. Rig ht now I am paying a lot. My medical benefits are cut off and there are probationary requirements. Mr. B., when he seized the f loor, neg lecte d, ho wev er, to explain w hat o r how pro batio nary r equirements affected his financial condition then or in the futu re. The bu rden to adduce evidence of an inability to afford the cost of the off-duty officer rested with Mr. B., under these circumstances. 9 Defender s Office,2 the presumed determination of indigency at that time means only that he was then financially unable, without undue hardship, to provide full payment of an attorney and all other necessary expenses o f legal representation (M d. Code (1957 , 2003 Repl. Vo l.), Art. 27A, § 2 (f) (em phasis added), made applicable by § 5-323 of the Family Law Article. The determination of Mr. B. s indigency for legal representation purposes obviously was made well before the facts as to his 17 March 2004 employment were adduced at the 5 May 2004 Circuit Court hearing. The hearing judge was entitled to consider the most current information in reaching her decision.3 That information was ample to support affirmance on this record. The dissent s reasoning that the off-duty law enforcement officer condition for continuation of the one hour per m onth supe rvised visitation must be su pported b y an explicit finding that the offic er was ne eded for th e safety, physiolo gical, psycholo gical, and emotional well-being of George B. is not a statutory requirement. Even if it was, such a finding was implicit in the judge s ruling, in light of the record of this case. 2 Docket entries in the trial court in George B. s case reflect that the Public Defen der s Office entered its appearance initially for Michael B. on 19 August 2003. 3 In any event, not being able to afford fully the cost of a lawyer and all necessa ry litigation expenses in a protracted child custody/visitation matter is a far cry from not being able to afford the cost of an off-duty law enforcement officer one hour per month. As to the availability of such officers to perform the services contemplated by the trial judge, it appears that certain sheriff s deputies in Baltimore County have performed in the same or similar capacities in the past. The trial judge stated that it was her understanding that some of the sheriff s that are off du ty will mo nitor sup ervised visitation and the y ll do it at a f ee. 10 Unlike apparently the dissent, we do not construe § 9-101(b) of the Family Law Article as requiring the trial court to f ind expres sly that there is no likelihood of further child abuse or neglect by M ichael B. be fore it may impose the relevant condition challenged in Mich ael B s appea l. First, the grammatical structure, i.e., hence the plain meaning, of § 9-101(b) permits, as an exception to the findin g requirem ent that mu st be made generally to allow custody or visita tion in the face of pre-existing abuse/neglect, the trial court to establish supervised visitation as long as the arrangements assure the safety and well-being of th e child. § 9-101 . Denial of custody or visitation on basis of likely abuse or neglect. * * * * * (b) Specific finding required. Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that p arty, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child. Md. Cod e (1984, 2004 R epl. Vol.) (Emphasis su pplied). The assurance s supportin g invocatio n of the exception must appear from the evidence of record in a given case, measured against the arrangements ordered for the visitation. No express findings are required to be made by the trial court in that regard. There was testimony before the trial judge that, at the 18 February 2004 supervised visitation between George B. and Michael B., it took four police officers to subdue Michael 11 B. and that George B . saw what hap pened (testimony of Ms. Kristy Caceres and Officer Katie Wind ers at the 23 Ap ril 2004 hearing ). Michael B. became unruly, yelling at social workers and refusing to leave when the visitation was terminated. In the course of ostensibly trying to prolong his visit with George B., Michael B. attempted to shove past Officer Winders by placing his shoulder into the officer s chest in an effort to move her from the doorway blocking h is access to George B. Observing his father s conduct, George B. seemed frightened, confused, and shocked, according to Ms. Caceres. Thus, the record supports that it was not merely for the protection of the social workers that the trial judge imposed the condition that future visitations would be m onitored, at Michael B . s expense , by an off-du ty law enforcement of ficer.4 Clearly, an additional goal of that condition was to inhibit Michael 4 A policy comment is in order, particularly for the benefit of other courts around the State, about the apparent direction given by the trial judge to the effect Michael B. locate, engage, and directly compensate an off-duty law enforcement officer to monitor future supervised visitations. Although we have no doubt that Michael B. m ay, and on this record should, be held responsible financially for implementation of the provision of additional security (occasioned by his misconduct) at the supervised visitations, it may not be appropriate, for policy, adm inistration, and efficiency rea sons, to ma ke Mich ael B. directly the employer of the security person or, for that ma tter, that the univ erse of per sons suitable to supp ly security b e lim ited t o off-du ty law enforcem ent personnel. Althoug h this record suggests that in Baltimore County off-duty deputy sheriffs have provided such services in the past (see Fn. 3, supra), such m ay not be the case elsewh ere thro ughou t the Stat e. Moreover, having the parent responsible for identifying the particular personnel, engaging him or her, and paying the person directly may blur the chain of command probably intended by the trial court and/o r the clarity with w hich the disc harge of th e security respo nsibilities is perceived by the security perso n. It may be m ore appro priate, for exa mple, to direc t DSS to engage an appro priate security per son and f or the paren t to be respo nsible financially to DSS for the reason able co mpen sation f or the se rvice. In any event, no observation o ffered here is intended to suggest tha t this Court is acting other than to affirm the ju dgment in M r. B. s appeal. 12 B. from cau sing furthe r deleterious e ffects on George B. s psycholo gical and em otional we llbeing. In any event, there is no indication in the record extract or any argument mounted by a party that the trial court failed to make any required statutory findings when it established, as the result of past periodic reviews, supervised visitation between Michael B. and George B. in Dec embe r 2002 and co ntinued such in June 2 003 an d Nov embe r 2003 . We fail to see why additional findings are required in the 6 May 2004 order continuing supervised visitation for the same one hour per month, but adding the additional condition of engagement of the off-duty officer, a condition occasion ed solely by Michael B. s miscon duct at the 18 Februa ry 2004 visitation. If Michael B. has additional evidence bearing on his inability to pay for the off-duty officer (or that such a condition is no longer necessary), he may present it at a subseq uent pe riodic re view h earing in the Circ uit Cou rt. Accordingly, the judgment in Michael B. s case also is affirmed. AS TO PART I, MS. B S APPEAL, THE ORDERS OF MAY 6, 2004, RELATING TO BILLY W. AND GEORGE B. ENTERED BY THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; AS TO JESSICA W. AND MARY S. DISMISSED. AS TO P ART II, MR. B S APPEAL, THE ORDER OF MAY 6, 2004, RELATING TO GEORGE B. ENTERED BY THE CIRCUIT C O U R T F O R BALTI M O R E C O U N TY AFFIRMED. COSTS TO BE PAID BY A PPELLANTS. Judges Raker, Wilner and Greene authorize me to state that they join in this opinion. 13 IN THE COURT OF APPEALS OF MARYLAND No. 100 September Term, 2004 IN RE BILL Y W ., JESS ICA W ., MARY S. & GEORGE B. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Battaglia, J. as to Part II, w hich Bell, C .J. and Cath ell, J., join. Filed: June 13, 2005 14 I respectfully dissent from Part II of this opinion regarding the disposition of Mr. B . s appea l. The majo rity co nclu des that th e tria l cou rt pro perly exercised its discretion in requiring Mr. B. to hire an off-duty law enforcem ent officer to supervise h is visitation with George B. I would find that the trial court failed to comport with the requirements of Section 9-101 of the Fam ily Law A rticle in restructuring Mr. B. s supervised visitation. In addition, I would conclude that the trial court failed to make adequate findings concerning M r. B. s ability to pay for the se rvices of an officer prio r to including such a provision as a condition of his supervised visitation. Therefore, in my opinion the judgment of the Circuit Court as to Mr. B. should be reversed and Mr. B. s case should be remanded for further proceedings. The trial court is constrained by the requirements of Section 9-101 of the Family Law Article when setting the conditions of visitation. Section 9-101 states: (a) Determination by court. In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abu sed or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party. (b) Specific finding required. Un less the cou rt specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall d eny custod y or visitation r ights to that party, except that the court may approve a supervised visitation arrangem ent that assu res the safety and the physiolog ical, psychological, and emotional well-being of the child. Md. C ode (19 74, 199 9 Rep l. Vol.), § 9-101 of the F amily La w Art icle (em phasis a dded). Thus, when a court has reasonable grounds to believe that neglect or abuse has occurred, as did the court in this case, custody or visitation must be denied, except for supervised visitation, unles s the court m akes a spe cific finding that there is no likelihood of further abuse o r neglec t. See In re Yve S., 373 Md. 551, 566-68, 819 A.2d 1030, 1039-40 (2003). If the court determines that supervised visitation is appropriate, the court must assure that suc h visitatio n will n ot jeopa rdize the safety an d well- being o f the ch ild. The court ordered that Mr. B. would have supervised visitation with George B. on the condition that Mr. B . pay for a law enforcem ent officer to supervise th e visitation, due to safety concerns for DSS representatives who were managing the visits. Altho ugh the sa fety of DSS representatives is an important concern, it is n ot within the findings n ecessary to satisfy the statutory prerequisites for the approval of a su pervise d visitatio n arran geme nt, because the c ourt is on ly to ap prov e suc h an arrangemen t if it a ssures the sa fety, physiological, psychologica l, and em otional w ell-bein g of th e child. See Md. Code (1974, 1999 Repl. Vol.) § 9-101(b) of the Family Law Article. In the present case, the trial court never correlated the need to restructure the supervised visitation with George B. s well-being. Rather, the court s focus was solely on concerns for the safety of DSS representatives. Further, the trial court s prerequisite that Mr. B. pay for an officer to supervise the visitation without determining h is ability to pay for such services is problematic. The rec ord clearly establish es that M r. B. p reviousl y had been determined to be indigent when he qualified for representation by the Public Defender s Office. Moreover, when the trial judge stated that M r. B. cou ld con tribute to ward th ings, M r. B. proffered to the court that he 2 would be unable to contribute because he was paying a lot, his medical benefits were cut off a nd he h ad othe r proba tionary req uireme nts. The Majority relies on statements made by Mr. B. while testifying on his ability to care for George B., to support its conclusion that Mr. B. likely could afford the additional condition of continued supervised visitation. Maj. op. at 9. When testifying, Mr. B. stated that he had a job and had to pay for his medical expen ses. His testimony, howeve r, did not specify the extent of his obligations and was not an exploration of the available options for supervised visitation. As an alternative to Mr. B. paying for an off-duty officer, counsel for Mr. B. requeste d to have th e visitation sup ervised un der the Y oung Fa thers/Resp onsible Fathers program ; howev er, the trial court d eclined that o ption and e mbraced the off-du ty officer alternative without determining the extent of Mr. B. s financial resources to pay for an officer, the cost of which was never established. In light of the lack of factual findings regarding Mr. B. s financial capabilities, the trial court shou ld have made fin dings about M r. B. s ability to pay for the of f-duty office r before co nditioning h is visitation on securing such service s. Add ition ally, I suspect that conditioning visitation upon the ability to pay for the services of an off-duty officer may present constitutional problems because a parent without financial resources could effectively be denied visitation as a result of indigency, whereas a parent with adequate financial resources would not . Although a trial judge may set reasonab le conditions on a paren t s visitation, such conditions must com port with basic 3 constitutional requirements, including equal protection of the law.1 See In re Lawrence T., 285 Md. 621, 630, 403 A.2d 1256, 1261 (1979) (holding that juvenile in delinquency proceeding was denied equal protection wh en the State s decision to file a petition against the juvenile was based upon his p arent s ability to pay res titution); Raible v. R aible, 242 Md. 586, 597, 219 A.2d 777, 782 (1966) (determining that in a divorce proceeding the court co uld impose condition th at the father p ay child support to receive visitation so long as he had the ability to pay); see also Haynes v. State, 26 Md.App. 43, 50-51, 337 A.2d 130, 135-36 (1975) (holding that a court may order an indige nt criminal defendan t to reimburse the State for services rendered by a public defender as a special condition of probation, if there is a determ ination t hat the d efend ant has the ability to pay for th e costs in curred ). For these reasons, I would reverse the judgment of the C ircuit Court as to Mr. B. and remand the case for further proceedings. Chief Judge B ell and Judg e Cathell au thorize me to state that they join in this dissent. 1 U.S. C ONST. amend. XIV, § 1 reads in pertinent part: No State shall . . . deny to any person within its jurisdic tion the e qual pr otection of the la ws. 4